Assembly passes bill to ban use of ‘gay panic’ criminal defense in NJ courts

TRENTON, NJ — Joining other states who have enacted or considered a ban on the use of “gay or trans panic” legal strategies in criminal cases, legislation sponsored by Assembly Democrats John McKeon and Joann Downey passed the full Assembly 73-0 on Nov. 25. The bill now goes to the Senate for further review.

The bill, A-1796, would prohibit the use of so-called “gay panic” defenses for the commission of murder. Current law provides that a homicide, which would otherwise be murder, is reduced to manslaughter if the jury finds that the homicide was committed “in the heat of passion” resulting from a reasonable provocation. 

The legislation, heard before the Assembly Judiciary Committee, intends to prevent a defendant from seeking the reduction of a murder charge to manslaughter committed in the heat of passion when allegedly provoked by the discovery of, knowledge about or potential disclosure of the homicide victim’s actual or perceived gender identity or expression, or affectional or sexual orientation. 

“The ‘gay panic’ or ‘trans panic’ defense is not a freestanding defense to criminal liability, but rather a legal tactic. It’s used to diminish the reason for a defendant’s violent reaction that asks a jury to find a victim’s sexual orientation or gender/expression as the cause,” said McKeon, who represents parts of Essex and Morris counties. “Whether the person was gay, transgender or heterosexual, sexual orientation should not have any bearing on determining a person’s guilt in a murder trial. It is prejudiced against the LGBTQ community.”

“This bill is a major step forward in addressing discrimination in our court system, and showing New Jersey’s LGBTQ community that we stand with them in solidarity against any type of discrimination and hatred,” said Downey, who represents parts of Monmouth County. “The so-called ‘gay panic defense’ or ‘trans panic defense’ has never been more than a transparent attempt to allow the assault or murder of LGBTQ individuals to happen with impunity, and it is long past time that we ended this dark chapter in American legal history.”

A provoked heat of passion manslaughter is a crime of the second degree, punishable by five to 10 years imprisonment, a fine of up to $150,000, or both; while murder is a crime of the first degree, punishable by a term of imprisonment for a period ranging from 30 years to life, depending upon the circumstances of the act, a fine of up to $200,000, or both.

Seven states — New York, Hawaii, California, Rhode Island, Illinois, Nevada and Connecticut — have already signed similar legislation into law. The legislation in New Jersey would take effect immediately after enactment.

  John McKeon, LGBTQ